Border Flooding, the Wall, and a Failure of Government Accountability

Guest post by Victoria Ochoa. Victoria is a 1L at the University of Pennsylvania Law School. Victoria is a Harry S. Truman Scholar, and was a Schedule C Presidential Appointee in the Obama Administration, where she worked as an assistant in the Secretary of Commerce’s office.

There have been a lot of reports about how the border wall will strip landowners of property they’ve owned for generations and destroy wildlife areas. There have also been reports on the selective outrage of Texas conservatives. They frequently decry federal overreach but now that the federal government is threatening to take the land of South Texas, one of the poorest and most heavily Latino regions in the country, they are silent.

To any native of the border, this is not the least bit surprising. History reflects how the Texas border region is part of our state’s literal and symbolic periphery. And the border wall will only exacerbate the structural inequalities that the state has permitted to exist. In particular, the wall has the potential to disproportionately impact the border residents who live in what some have deemed to be the “third-world America no one notices.”

These areas, called colonias, are low-income unincorporated areas that typically lack potable water, electricity, paved roads, and waste management. Located in or near the Rio Grande floodplain and lacking proper drainage, they are already vulnerable to flooding. According to a recent study, 45% of colonias in the Rio Grande Valley will flood when lesser rains of 3.9 inches will cause the Rio Grande to overflow. When the river receives 7.8 inches of rain, 52% of colonias risk flooding. On average, 95.4% of colonias are more than 1.5 miles away from a hospital and 80.5% are more than 1.5 miles away from a fire department. This goes against guidance from the Insurance Service Office, which states that “a built-upon area of a community should have a first-due engine company within 1.5 road miles and a ladder-service company within 2.5 road miles.”

Not only are border residents most vulnerable to flooding, but given the lack of infrastructure within colonias as well as the lack of resources in these areas, they are the residents who will face the most difficulty accessing emergency services if a storm or hurricane were to impact our region. A border wall is likely to exacerbate this flooding problem when storms do occur, but because of a lack of procedural oversight, we do not even know how exactly the levee wall will impact these and other communities along the border.

In this latest iteration of the wall, we do not know how the wall will impact the flood risk of the Rio Grande floodplain and residents do not have effective means to challenge this impact. In the absence of environmental laws, the Department of Homeland Security (DHS) is not required to conduct an environmental impact analysis of the effect the wall will have on the river, the flood plain, and the surrounding area. And without the Administrative Procedure Act, local residents cannot challenge the Secretary’s waiver or the procedural processes DHS used to move forward with the wall.

This is alarming, considering that other levee walls and past attempts to build them in the region indicate that the wall in the Rio Grande Valley will have an adverse impact on these border communities. In Nogales, Arizona, border walls have exacerbated flooding during storms by causing debris to create a dam and back up water. In 2008, DHS attempted to build a wall in Starr County, where many communities are in the floodplain, but quickly backed out when a CBP contractor concluded that “mitigating the impacts of flooding from the United States side of the border is unattainable.” The contractor also concluded that the risk on the Mexican side could result in loss of life. Between 2008 and 2010, the International Boundary and Water Commission (IBWC), a binational agency in charge of flood control and water rights on the Rio Grande, also expressed concerns about the flooding risk a wall in Starr County would pose to communities on both sides of the border. However, in 2011, when CBP commissioned another study using a different software, the analysis concluded that there would be minimum hydraulic effects on the Mexican side, and the U.S. section of the IBWC signed-off on a border wall in Starr County. Yet, when the Mexican section of the IBWC conducted its own analysis with the same software, they concluded that if a wall were built in Starr County, floodwaters would increase by 40 to 100 percent on the Mexican side.

The latest Appropriations bill does provide for some community oversight by requiring DHS and local elected officials to agree upon the design and alignment of barriers within cities. It also requires the DHS Secretary to call for comments on pedestrian fencing in Starr County, but unlike the APA, which requires agencies to adequately respond to the comments they receive, the Appropriations bill doesn’t require the Secretary to do anything with them. And because the APA is waived, the Secretary does not even have to show that the agency’s decision is a rational one. Residents in the Texas borderlands have few outlets to challenge a $5.7 billion wall that has the potential to seriously threaten their land and lives.

This January, Texas State Representative Roland Gutierrez filed legislation that would direct the Texas Water Development Board and the Texas Commission on Environmental Quality to study the impacts of a border wall on storm drainage, water quality, and environmental contamination. Federal lawmakers should follow suit, demanding accountability and reporting for massive infrastructure projects along the border through separate legislation or in future appropriations for the wall. Further, the DHS Secretary should not be permitted to waive the APA during the construction of the border wall. DHS waiver authority was created to address real national security threats in an effective and timely manner. However, President Trump’s latest declaration of a national emergency only emphasizes how destructive and disempowering this waiver authority can be for local communities when it is used for political purposes instead of real emergencies.

Perhaps more importantly, low-income communities of color should not be stripped of the agency to demand to know how a levee wall will impact their safety. And they should not be powerless to challenge its construction if it has the potential to threaten their lives. This country has a long history of disregarding the impact of natural disasters on communities of color. We’ve seen this most recently with Hurricane Maria in Puerto Rico and even earlier with Hurricane Katrina in New Orleans. Now, the government is replicating these disasters by building a wall.

This is unacceptable and a reality we can no longer abide.

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The Harvard Civil Rights-Civil Liberties Law Review is now accepting submissions for Volume 55, Issue 2 of our journal. We would like to invite you to submit any of your manuscripts that relate to the broad umbrella of civil rights and civil liberties.